In 2020 there were roughly 1.68 million marriages in the United States, down from 2.02
the previous year. Statistics show that approximately every 2.3 couples in a 1,000 will divorce.
Despite what you may think about those numbers, the fact is that divorce is not uncommon, and
divorce rates run between 40-50 percent. My point is you’re not alone. Whether you are
initiating the divorce or having to respond to it, I’m here to help you navigate this difficult
terrain.
If you are considering a divorce, it is important to know your options. For instance, the
most common concerns are how will a divorce affect your financial status and marital assets;
will you have to pay, or will you need, child and/or spousal support; what marital debt will you
be responsible for; and how will your taxes be affected.
You also need to know the process and procedure for the divorce. Many people believe
they can file for the divorce on their own if they and their spouse agree to the divorce. They
quickly learn that this part of the divorce can sometimes be more overwhelming than the
settlement of marital issues. I am often contacted by people who initially tried filing for the
divorce on their own, only to have their case rejected numerous times because they did not understand the strict civil procedure requirements for a divorce.
Uncontested Divorce
An uncontested divorce occurs if you two agree to settle all issues related to the divorce or there are no issues to be settled. For example, if you have no children, no marital assets, and no marital debts that you want your spouse to pay then you have an uncontested divorce.
Likewise, if you have children, assets and debts but the two of you agree to sign a martial settlement agreement then you have an uncontested divorce. Make no mistake, your goal is an uncontested divorce. Both parties benefit from an
uncontested divorce process. There is no fighting in the courtroom, costs are drastically reduced, the process takes less time, and it allows the participants to control their future rather than have a
judge make a decision for them.
Asset Division
Generally speaking marital property is: all property acquired during the marriage except
by inheritance, gifts or property excluded by agreement (prenuptial agreement). Separate
property is that owned prior to marriage or by gift or inheritance or property acquired post-
separation.* There are a few exceptions. For instance, you can convert separate property to
marital (or cause it to be part marital) in a few ways. One example is if you owned a home prior
to marriage but after marriage you retitled it and added your spouse then you likely have
converted it to marital or part-marital. Confusing, I know. That’s why I’m here to explain to you the nuances.
Spousal Support
There is no guarantee you will receive (or you will have to pay) spousal support. The
answer depends on the specific facts of your case. There are statutory factors that you should
consider when negotiating a settlement to determine the likelihood of support. If there is
support, the next question is for how long. Again, it depends. There is a general rule of thumb
that it could be for the half the length of the marriage. Of course, there are events, like
remarriage of the receiving spouse, that terminate the support earlier.
Child Support
We have child support guidelines that we use to calculate child support. Like all things in
family law, even the calculated result may not be fair or reasonable so we may need to negotiate
a different number than the guidelines. The guidelines combine your income and your spouse’s
income and based on that combined income the state determined how much the children need. It then
adds credit for childcare costs and health insurance to give the final number. However, the two
of you can agree to a higher or lower amount in child support.
If you receive spousal support from your spouse then that amount is credited as income
against you and deducted from the income of payor when calculating child support. Child
support is required until a child reaches the age of 18 or if the child is a full-time student in high
school then to 19. If the child has a permanent disability and is unable to care for themselves
then the support can be longer.
Debt Distribution
Debt distribution is similar to how the marital property is divided. Marital debt is
incurred in joint names during the marriage and debt incurred in either party’s name after the
marriage as long as the debt was used in whole or in part for a non-marital purpose. So, for
example, if your spouse accumulated gambling debts, that’s not marital debt.